Shree Chandrashekhar,J
1. The sole appellant, namely, Upendra Singh has been convicted and sentenced to R.I. for life and fine of Rs. 5,000/- under section 302 of the Indian
Penal Code.
2. On the basis of the fardbeyan of Bhagwan Ram which was recorded on 04th October, 2007 at about 16:55 hrs. at village Patariya, Haidarnagar
P.S. Case no. 40 of 2007 was registered against the appellant under section 302 of the Indian Penal Code. During the trial, the prosecution has
examined eight witnesses; the informant is PW-4.
3. The defence set up by the accused-appellant is that father of the appellant has in fact helped widow of the deceased Udheshwar Ram and it is not
that the appellant has killed him. In support of his defence, the appellant has examined two witnesses and produced a copy of the sale deed.
4. In his fardbeyan, the informant has stated that on 4th October, 2007 at about 4 p.m. he was going to ease himself towards eastern side of the
village. Suddenly he heard hulla and ran there. He found Upendra Singh assaulting his son with hoe (kudal) and his son was crying for help. On seeing
him coming there, the accused fled away. At that time, his other son, namely, Rajkeshwar Ram who was working in a nearby field also came there.
At the place of occurrence he found his co-villagers Ramakant Singh and Surendra Paswan who narrated the incident to him. The informant has been
examined in the court as PW-4. He has reiterated his statement as recorded in the fardbeyan. He has stated that he has seen the appellant assaulting
his son with hoe indiscriminately and when he reached there he fled away. He has affirmed presence of the prosecution witnesses at the place of
occurrence. PW-1 is the person who has narrated the entire incident to the informant. He has stated that he was working with Rama Singh and on the
day of occurrence Ashok Ram and Udheshwar Ram were unloading morem from the tractor. Ashok Ram has been examined as PW-2. He is also an
eye-witness. He has also narrated a similar story of the incident. During their cross-examination PW-1, PW-2 and PW-4 have remained unshaken.
The defence has failed to elicit such material fact from them which would create a doubt on their testimony. Minor inconsistencies in testimony of
PW-1, PW-2 and PW-4 would not shake foundation of the prosecution’s case [refer, “A. Shankar Vs. State of Karnatakaâ€, (2011)6
SCC279].
5. PW-3 is wife of the deceased. PW-6 who is driver of the tractor has turned hostile. PW-7 is inquest witness and the Investigating Officer has been
examined as PW-8. The Investigating Officer has inspected the place of occurrence, prepared the inquest report and gathered the material objects
from the place of occurrence. PW-3 and PW-7 are not the eye-witnesses but supported the prosecution’s case on material aspects.
6. From the aforesaid evidences, the prosecution has proved complicity of the appellant in the crime. He was present at the place of occurrence, at
the time of occurrence and he has assaulted Udeshwar Ram with hoe.
7. Mr. Vikash Kumar, the learned counsel for the appellant has contended that from the evidences led by the prosecution it is apparent that the
appellant is entitled for the benefit of Exception 4 to Section 300 of the Indian Penal Code.
8. Section 300 of the Indian Penal Code provides that culpable homicide is murder if the act by which death has been caused falls under any one of
the four clauses under section 300 of the Indian Penal Code, but at the same time it also provides that culpable homicide is not murder if the offending
act falls under anyone of the five exceptions under section 300 of the Indian Penal Code. The essential ingredients under Exception 4 to Section 300
of the Indian Penal Code are; (i) the accused has acted without pre-meditation, (ii) he has committed the offence in a sudden fight and in the heat of
passion, (iii) he has not taken undue advantage and, (iv)he has not acted in a cruel and unusual manner. In “Manoj Kumar Vs. State of Himachal
Pradesh†reported in (2018) 7 SCC 327, the Hon’ble Supreme Court has observed as under:
“ 27. There is no dispute about the ingredients of Exception 4 to Section 300 IPC, the following conditions are to be satisfied namely:
(i) that the incident happened without premeditation;
(ii) in a sudden fight;
(iii) in the heat of passion;
(iv) upon a sudden quarrel; and
(v) without the offender having taken undue advantage or acted in a cruel or unusual manner.
28. It may be relevant to note that in Sridhar Bhuyan v. State of Orissa, it was held as under: (SCC pp. 396-97, paras 7-8)
“………... There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or
less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the
serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to
each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the
offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person
killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight†occurring in
Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the
passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the
beginning.â€
9. The appellant was unarmed and the incident has happened on a trivial matter. When PW-1 and PW-2 along with the deceased were trying to
unload morem on the left side of the road at village Pathariya, the appellant objected to it. When Udheshwar Ram showed his reluctance, the appellant
abused him. A quarrel has ensued thereafter, however, the deceased and the prosecution witnesses started unloading morem, whereupon the appellant
picked up a giata from the tractor and assaulted Udheshwar Ram. The informant has stated that when his son fell on the ground, the appellant picked
up his hoe and again assaulted him. On such facts, we find that the appellant has assaulted Udheshwar Ram without pre-meditation. In a sudden
quarrel he has picked up gaita from the tractor and hoe of the deceased and assaulted him in the heat of passion.
10. Dr. Jaiwant Lakra-P.W.-5 who has conducted the post-mortem examination on 5.10.2007 at about 9:45 a.m. has found four injuries on
Udheshwar Ram. In the opinion of the doctor, the cause of death was shock and haemorrhage due to injuries suffered by Udheshwar Ram.
11. Mr. Hardeo Prasad Singh, the learned APP has submitted that repeated assault by the appellant on Udheshwar Ram would indicate that he has
requisite intention to kill him.
12. From the medical evidence, we find that the doctor has not rendered a definite opinion whether any one of the injuries has proved fatal. The injury
no.1 which is the incised wound of the size of 2 ½†x ½â€, bone deep, was found on the left parietal region of the head of the deceased, but in
paragraph no.12 of his cross-examination the doctor has stated that the death has not been caused due to any particular injury.
13. On such facts, we are of the opinion that the appellant is entitled for the benefit under Exception 4 to Section 300 of the Indian Penal Code.
14. Incised injuries caused to Udheshwar Ram would, however, establish that the appellant had requisite intention as envisaged under section 304
Part-I of the Indian Penal Code and, therefore, he is convicted and sentenced to R.I. for ten years under section 304 Part 1 of the Indian Penal Code.
15. Accordingly, the judgment of conviction under section 302 of the Indian Penal Code dated 27th July, 2010 passed against the appellant, namely,
Upendra Singh by the learned Additional Sessions Judge, Fast Track Court-I, Palamau at Daltonganj in Sessions Trial no. 37 of 2008 is set-aside.
16. The appellant, namely, Upendra Singh is convicted and sentenced to R.I. for ten years under section 304 Part I of the Indian Penal Code.
17. Mr. Hardeo Prasad Singh, the learned APP states that the appellant, namely, Upendra Singh has remained in custody for more than 12 years.
18. Accordingly, the appellant above-named shall be set free forthwith, if not wanted in connection to any other case.
19. In the result, Criminal Appeal (D.B.) No.944 of 2010 is partly allowed.
